Skilled defense without the ego

Andrea F. SiegelSun Staff

CHESAPEAKE, Va. -- They seem an unlikely pair -- the courtly Richmond lawyer who can stretch his vowels into next week and the Bronx native who bottles up New York intensity in a voice often so flat and low that the judge reminds him to speak up.

These two, who met in January when a Virginia judge teamed them, are the lead defense lawyers for Lee Boyd Malvo, who is suspected of acting as the teen-age half of another seemingly unlikely duo -- the sniper team that gripped the Washington area in fear last fall.

Since then, Craig S. Cooley of Richmond, Va., and Michael S. Arif, a transplanted New Yorker who practices in Springfield, Va., have spent more time with each other than with anyone else.

"I'm the geezer -- the oldest, the ugliest -- but close behind, ladies and gentlemen, is Mike Arif, that is sitting at the table," Cooley told the jury a week and a half ago in his opening statement, as he began introducing the five-member defense team the two lead.

When Malvo's trial resumes today, the defense attorneys will begin to put on their case. In nearby Virginia Beach, the jury that convicted John Allen Muhammad last week of capital murder in the sniper shootings will continue today to deliberate on whether he should be sentenced to death.

Cooley, 56, recalled in an interview that when Fairfax County Circuit Judge Jane Marum Roush asked him to join Arif in representing the indigent Malvo, "she said she wanted someone with a lot of gray hair and a lack of ego" -- and attorneys who know the longtime lawyer say that's exactly what she is getting.

Self-effacing attitude aside, Cooley is considered one of the premier capital defense attorneys. With some 60 capital cases behind him since 1979, only two of his clients have been sentenced to die. In the same breath, Cooley says he can't claim credit for wins or losses because at least two lawyers are court-appointed for each capital defendant.

Arif, 52, is viewed as a savvy strategist, sharp and dedicated, whose criminal defense work has included several capital cases in Fairfax County. Colleagues describe him as an ardent defender, whose wry wit is punctuated by a self-deprecating edge and a penchant for understatement.

Charged as an adult at age 17, Malvo is accused in two counts of capital murder in the fatal shooting of FBI analyst Linda Franklin, killed in a Home Depot parking lot near Falls Church on Oct. 14 last year, 2002. Malvo and Muhammad are suspected of 13 shootings, 10 of them fatal, in the Washington area, and more around the country.

Cooley and Arif oppose execution of defendants who killed as juveniles. Dedicated to saving Malvo's life, they say they remain sympathetic to sniper victims and the victims' relatives, such as Linda Franklin's husband, who has been a constant courtroom presence.

"I try not to look at him because I will cry," Arif said of William Franklin, who has given wrenching testimony about seeing his wife die by his side.

Defense strategy

The defense is likely to begin presenting a devil-made-me-do-it defense today: not guilty by reason of insanity, contending that Malvo was so brainwashed by the charismatic Muhammad that he had no ability to think independently.

Experts say that approach and the defense team's legal skills are Malvo's best chance to avoid execution. The defense will call more than four dozen witnesses to counter the prosecution's weeklong emphasis on monstrous crimes, damning confessions and sad relatives of victims.

Lawyers say that although an insanity defense is nearly guaranteed to lose when the jury has to decide guilt or innocence, it holds out the possibility of creating enough sympathy that jurors will vote for life in prison instead of execution.

Cooley said he spends 300 to 350 hours preparing for the average death-penalty case, most of it for sentencing, and that is for a case that doesn't involve investigating more than a dozen shootings and interviewing witnesses from the Caribbean to Washington state.

"The amount of work in this case is beyond comparison to any other case I've ever done," he said.

Two of Arif's partners, Mark J. Petrovich and Thomas B. Walsh, are also working on the case, as is recent law school graduate John Strayer. A law school program contributed student researchers early on. Three investigators and a small army of mental health and other experts also are on the defense team.

Those who know Cooley and Arif say jurors will not see courtroom antics, but a defense geared toward placing them inside what the lawyers contend was an insidious relationship between a vulnerable youth and a charismatic adult.

Warren Von Schuch, a Chesterfield County, Va., prosecutor, described the white-haired Cooley as gentlemanly, low-key and precise, with a relaxed manner that inspires trust in juries.

"He comes across as very credible because of the sincere way he approaches an issue," Von Schuch said.

Von Schuch is the only state prosecutor to have won a death sentence against Cooley. On Aug. 15, 2000, John Yancey Schmitt, who was convicted of killing a bank guard during a 1999 bank robbery, was sentenced to die.

"Craig is a rarity," said Steven Benjamin, a Richmond lawyer who has known Cooley for 25 years. He says Cooley is a role model -- someone who feels a responsibility to take court-appointed death-penalty cases.

Cooley said he felt he would be abandoning his principles if he said no when Roush called.

A former tennis pro, Cooley said that five years as a high school teacher taught him how to hold the attention of juries. A Harrisonburg native, he was inspired to enter law by the movie To Kill a Mockingbird. He returned to his alma mater, the University of Richmond, for a law degree.

He has received the state bar association's Harry L. Carrico Professionalism Award -- as has Fairfax County Commonwealth's Attorney Robert F. Horan Jr., who is prosecuting Malvo.

'Simpatico'

Arif has tangled in court before with Horan in capital cases.

Leonard R. Piotrowski, who now runs the Regional Capital Defender Office for Northern Virginia, enlisted Arif to help defend Bobby Lee Ramdass, accused in the killing of a store clerk in Fairfax County in 1992. Piotrowski remembered that Arif would look beyond the expected to get information.

"He was bright, he had different ideas," Piotrowski recalled.

Ramdass was executed in 2000.

More recently, Arif kept Sterling Fisher off death row. Fisher was charged with capital murder in the 1995 slaying of a gas station attendant. He was convicted of first-degree murder and is serving a life term.

Mark J. Yeager, another Fairfax County attorney who takes capital cases, described Arif as passionate in his defense of clients.

"He carries all the scars of all the former battles that he has fought," Yeager said, adding, "As the Spanish would say, he is simpatico, he is a genuine human being." He said Arif talks to jurors like he is talking at a family gathering, not much for histrionics or oratory, but with a common-sense way about him.

Alexandria attorney Marvin Miller, a past president of the Virginia Association of Criminal Defense Lawyers, described Arif as persistent, diligent and intense.

"You have to be intense when you take these cases," Arif said.

Arif, whose clients include court-appointed impoverished defendants, jokes that he never should have come to the phone when he was asked to take Malvo's case. But, he said, he feels personally and professionally obligated to accept such cases. "When I see Lee, I see my 18-year-old kid, I see anybody's 18-year-old kid. I know the screw-up I was when I was 17," Arif said.

He said he barely made it out of a Bronx high school, then drove a cab while waiting for the Vietnam-era draft call that didn't come.

"I stopped driving a cab when a guy put a gun to my head," he said. He worked his way through college, then went to law school at American University in Washington. He passed the Virginia bar in 1981 and worked for a nonprofit group, then for a law firm, and was on his own before embarking on his current law partnership in 1990.

"I watched Perry Mason," he said wryly. "I figured if his clients were innocent, mine would be."